Garcia Zarate, an undocumented Mexican national, claimed that the shooting was an accident and that he found the gun covered in rags beneath his chair, picked it up briefly when it fired and threw it into the Bay when he realized it was a gun.
On Aug. 30, a three-judge panel of the state Court of Appeal overturned Garcia Zarate's state gun conviction. Because the conviction was overturned, Judge Sam Feng agreed to discharge the conviction during a hearing on Dec. 4.
According to District Attorney's Office spokesman Alex Bastian, the conviction was discharged because Garcia Zarate is facing similar charges in federal court: two counts of being an ex-felon in possession of a gun.
"We make these methodically. There is a superseding indictment in this case. The federal government has charged this particular person with the same conduct that is occurring here. As a result, we're going to step aside and let the federal government take the case," Bastian said.
Garcia Zarate's defense attorney, the Public Defender's Office chief attorney Matt Gonzalez, was not immediately available for comment.
In addition to the two counts of being an ex-felon in possession of a gun, the federal government has also indicted Garcia Zarate for being an undocumented person in possession of a gun.
Garcia Zarate, who remains in federal custody, is scheduled to go on trial on those charges in the court of U.S. District Judge Vince Chhabria in January.
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